M. S. H. QURESHI, J.-This appeal against the award of sentence of death and the Reference for the confirmation of that sentence, arise from an incident which took place within the premises of the District Jail, Sargodha, in which one under trial prisoner met his death at the hands of another.
Manzoor Hussain deceased alone with his two brothers Munawar Hussain and Safdar Hussain, and one Muhammad Latif had been confined in judicial lock-up in the District Jail, Sargodha in connection with the murder of one Dosa Pathan said to be a maternal uncle of Sattar the present appellant. The appellant too had been lodged in the jail as an under trial prisoner since about two months prior to the occurrence in connection with a case of theft of oranges from the garden of the deceased's father. According to the Jail routine, the prisoners were taken out early in the morning to attend the call of nature. At the time of the occurrence, nine undertrial prisoners, including the deceased, his brothers Munawar Husain, and Muhammad Farooq P. W. Were kept in room No, 6 of Barrack No, 6-A of the Jail. The room opened to the North and had a window fitted with iron bars on the South side. On 15-6-1971, at about 6 or 6-15 a.m., the deceased, Munawar Hussain, Safdar Hussain and Muhammad Farooq P. Ws. Were present in the room, and seated with their faces towards the window, were reciting from the Qur'an when the appellant came at the back of the room and fired with a carbine through the window hitting the deceased in the chest as a result of which he fell down and expired. The occurrence was seen, besides the inmates of the room, by Manzoor Husain and Muhammad Hussain P. Ws. Who were at that time present in the open space reserved for prayers at the back of room No, 6, and had been busy reciting verses on tasbih. The appellant then ran away towards his Barrack No, 8.
2. On hearing the shot, the Jail staff rang the alarm. Syed Muzaffar Husain Deputy Superintendent of the Jail, rushed to the scene. On reaching the cell of the deceased, Syed Muzaffar Hussain found his dead body lying there and upon being told that the murder had been committed by Sattar appellant, he along with Khurshid Alam Chief Head Warden, who had also come in the meantime and some prisoners, went after the appellant to Barrack No, 8 where he was overpowered and his carbine (Exh. P. 4) was snatched by Manzoor Hussain (P. W. 9) which he handed over to the Deputy Superintendent. On their way back the Deputy Superintendent found a missed cartridge (Exh. P. 6) lying at the back of the room of the deceased which he secured. At that time Mr. Mehmood Ahmad Bajwa, Superintendent of the Jail also arrived. On his enquiry, the appellant confessed to have committed the murder of the deceased. He also told him that he had been supplied the carbine by one Aman Ullah. Mr. Mehmood Ahmed Bajwa took the appellant and confined him in a condemned prisoner's cell. He then sent a brief information to the District Magistrate, Sargodha (Exh. P B) to the effect that under trial prisoner Manzoor Husain son of Muhammad Bashir had died by a pistol shot fired by another under-trial prisoner Sattar son of Rajada and requested that a 1st Class Magistrate be deputed to hold enquiry. He also sent a copy of the letter to the Cantonment Police Station, Sargodha where a formal F. I. R. Was recorded at 7 a.m. (Exh. PB/2). Abbas Khan S. I. Reached the spot where he recovered the carbine (Exh. P 4) and the missed cartridge (Exh. P. 6) which were produced before him by the Superintendent of the Jail. On opening the carbine the Police Officer recovered empty (Exh. P 5) from inside the chamber. From the spot he recovered blood-stained dari (Exh. P 7) and blood-stained chadar (Exh. P 8). He also formally arrested the appellant.
2. Neither Doctor Balig-ur-Rehman who had performed the post-mortem examination nor Doctor Ghulam Muhammad who had scribed the postmortem report, being available, the same was proved through Asghar Ali Dispenser of the Jail Hospital. According to that report, there were six firearm wounds on the front upper part of the chest. Five of them were i" each and one of them was x'. There was charring which was more marked on the superior and right borders of the wounds.
The n oundsa were a little oblique in direction i,e, downwards and to the left. All of them had pierced the sternum, entered the chest, cavity, pierced both lungs, heart, liver and spleen. Three pellets were removed from the lateral surface of left chest wall under the subcutaneous tissues.
Four pieces of gatta were also removed from the subcutaneous tissues.
3. During the trial, the eye-witness account was furnished by Munawar Husain (P. W. 6), Muhammad Farooq (P. W. A, Muhammad Husain (P. W. 8) and Manzoor Husain (P. W. 9) all inmates of the Jail at the time of the occurrence. They were corroborated by Khurshid Alam Chief Head Warden (P. W. 4), Syed Muzaffar Husain Deputy Superintendent of the Jail (P. W. 10) and Mr, Mehmood Ahmad Bajwa Superintendent of the Jail (P. W. 3). Mr, Mehmood Ahmad Bajwa and Syed Muzaffar Husain also proved the recoveries.
4. In his examination under section 342, Cr. P. C. The appellant had denied the allegations. Lie had denied his relationship with Dosa in connection with whose murder the deceased had been in the judicial lock-up. He had admitted that he and Aslam had been challaned in the theft case but had asserted that that case was false. He had alleged that he had been implicated in the murder case due to enmity. The learned trial Judge having found the prosecution case, including the evidence relating to the extra-judicial confession fully established against the appellant, held him guilty of the murder.
5. It was contended before us that the occurrence had not been seen by any one nor had it taken place in the manner and at the spot given by the prosecution. In this connection it was urged that the medical evidence was not only conflicting in regard to the number of pellets which had struck but was also in conflict with the oral testimony regarding the distance from which the shot had been fired. It was pointed out that according to the post-mortem report there were five exit wounds and 3 pellets had been recovered which would show that at least 8 pellets had entered the body but the wounds of entry were only six. The pictogram shows no wounds of exit. The five wounds of exit had been found on the posterior wall and apex of left ventricle, in the course of internal examination of the pericardium and the heart. It was then pointed out that in case there were no exit wounds, there should have been 6 pellets instead of 3 in the body. The post-mortem report says: "3 pellets were removed from the lateral surface of left chest wall under the subcutaneous tissue." This does not mean that there could have been no more pellets in the body. The post- mortem report also mentioned the presence of charring. The distance from where the appellant is said to have fired, as given by the Draftsman (P. W. 2), is 5 ft. It was urged that there could be no charring from that distance particularly when according to Muhammad Farooq P. W. The carbine had not been seen protruding inside the room. The witness, in fact, stated : "I saw Sattar accused for the first time after he fired at the deceased and was retreating. He had fired at the deceased from outside the window with the carbine not protruding inside the room". Since the witness had looked up after the firing when the assailant was retreating, it cannot be said with certainty that the carbine had not been thrust inside the window thereby reducing the distance. The presence of separate holes of entry shows some dispersal in the pellets which means that the shot had not been fired from a very close range either. According to Medi scorching is to be found if the distance is within 4 ft. We, therefore, do not find any material discrepancy between the medical and the oral evidence in regard to the distance.
6. It was urged that presence of the eye-witnesses should be ruled out for the reason that none of them had been cited in the F. I. R. Reliance for this was placed on Khalil v. The State and Mamoon and another v. The State . We are afraid, the rulings are not applicable to the case before us because here the F. I. R. Had neither been lodged by an eye-witness nor by a relation of the deceased. In fact Exh. P. B. On the basis of which the F. I. R. Was recorded, is only a brief communication from the Superintendent of the Jail addressed to the District Magistrate, Sargodha, informing him of the death of the under trial prisoner and requesting him to depute a Ist Class Magistrate for holding enquiry. The Superintendent, though he sent a copy of the communication to the S. H.0., obviously was not lodging a First Information Report in the usual sense. All the four eye-witnesses were inmates of the Jail. Two of them, namely Munawar Husain (P. W. 6) and Muhammad Farooq (P. W. 7), were confined in the same room with the deceased. Manzoor Husain (P. W. 9) was lodged in another cell of the same Barrack while Muhammad Husain (P. W. 8) in nearby Barrack No,
7. The latter two had been present near the scene of the occurrence. They are all, therefore, natural witnesses. It is true that none of the three Jail officials, namely Mr. Mehmood Ahmad Bajwa the Superintendent, Syed Muzaffar Husain the Deputy Superintendent and Khurshid Alarn the Chief Head Warden, gives the name of the person from whom they had come to know that the murder had been committed by Sattar. This to our mind is not material, because we have no reason to doubt the presence of the four eyewitnesses. The Deputy Superintendent and the Chief Head Warden do mention the name of Manzoor Husain (P. W. 9) as one of the persons who had gone ahead and snatched the carbine from the hand of the appellant.
7. The doubt in regard to the place of occurrence, it was urged, arose from the fact that no blood- stained earth had been removed nor had the presence of blood-stained dari been mentioned against Column No, 23 of the Inquest Report. It appears that no question was put to the Superintendent or the Deputy Superintendent of the Jail, who are the witnesses to the recovery, or the Investigating Officer, as to why blood-stained earth was not removed from the spot. Both the recovery witnesses, however, testified that the blood-stained dari had been recovered from the spot which was inside the cell of the deceased. We, therefore find no reason to believe that the occurrence had not taken place at the spot as deposed by the witnesses.
8. As regards the recovery of the carbine it was urged that the same was not linked with the crime because neither the carbine nor the empty (Exh. P. 5) nor the missed cartridge (Exh. P. 6) had been1 2 sent to the c Laboratory to establish such link. Since the empty had been recovered from inside the chamber of the carbine and since cartridge (Exh. P. 6) had been a missed one, we do not find sufficient force in the contention because no useful purpose would have been served by referring them to the Fire Arms Expert. The carbine was seen by us in the presence of the counsel. It was a country-made weapon with a short '12 bore barrel. It is to be noted that the carbine had been seen not only by the ocular witnesses but also by the Deputy Superintendent of the Jail in the hands of the appellant immediately after the occurrence and had been secured from him by Manzoor Husain (P. W. 9). This provides a strong circumstance against the appellant.
9. The last argument related to motive, the contention being that the appellant's relationship with Dosa Pathan having not been proved, no motive could be said to have been established against the appellant. Munawar Husain P. W. Who asserted that Dosa for whose murder he was in the judicial lock-up, had been the maternal uncle of the appellant. He did not fully explain the basis of this relationship but only stated: "It was well-known in our Chak that Sattar accused is the maternal sister's son of Dosa deceased". The relationship had been consistently denied by the appellant both daring the inquiry and the trial. In this connection it was further urged that the appellant had been named as the murderer on account of the enmity between the parties arising from the theft of oranges. The prosecution is not bound in every case to prove the motive which had led to the commission of the murder. In the present case, we find nothing against Muhammad Farooq Muhammad Husain and Manzoor Husain P. Ws. To suspect that they were falsely implicating the appellant. They had no animus for doing so. The case against the appellant is, therefore, established even without the evidence of motive.
10. We are not inclined to give much credit to the extra-judicial confession said to have been made by the appellant before the Superintendent E of the Jail, not because we doubt the reliability of the witness but because he not having mentioned of the same in his letter (Exh. P. B.) Or in his statement before the Police (Exh. P. A.), it will be safer to discard the same.
11. In these circumstances, we find no merit in this appeal. There being no extenuating circumstance, the normal penalty is deserved. We, accordingly, while dismissing his appeal confirm the death sentence. PLD 1956 Lah. 340 PLD 1962 Kar. 800